Angelus Award

FEDERATION OF SAINT CHRISTOPHER AND NEVIS

ISLAND OF SAINT CHRISTOPHER

AD 2010

BOARD OF ASSESSMENT

(LAND COMMONLY REFERRED TO AS “THE ANGELUS”)

AD 2010

THE AWARD

FEDERATION OF SAINT CHRISTOPHER AND NEVIS

ISLAND OF SAINT CHRISTOPHER

AD 2010

BOARD OF ASSESSMENT

(LAND COMMONLY REFERRED TO AS “THE ANGELUS”)

            The Chairman and members of the Board of Assessment:

            Mr Don Mitchell CBE QC

            Mr Joseph Lancaster

            Mr Peter Jenkins

            Appearances of counsel and parties before the Board:

            Anthony Astaphan SC, Dr Henry Browne, Mr Arud Gossai, Sheleen Matthew, Grace                                                          Gilfillan and Mr Leon Charles with him, for the Authorised Officer

            Mr Fitzroy Eddy for Mr and Mrs Mederios

            Mr Emile Ferdinand, Mr Damian Kelsick with him

            Mr and Mrs Alberto Franconeri, Claimants

            Ms Dana Harper, Claimant

            Ms Elizabeth Harper

            Ms Rosalind Harper, Claimant

            Ms Robin Herbert-Thompson

            Ms Constance Mitcham, Ms Kishari John with her

            Mr David Rawlins

            Dr Vernon Veira

            Mrs Beverley Williams, Authorised Officer

            Mr Dan Wise, Ms Claire Robey and Mr James Fairburn with him of Martin Kenney & Co

Sittings of the Board:   6 February, 17 July, 17 September, 1, 7, 8, 9 December 2009, and 18 January and 18 February 2010

THE AWARD

[1]                 On 8 September 2006, the Government of the Federation of St Kitts and Nevis issued Statutory Rule and Order Nos 21, 22 and 23 of 2006[1] evincing an intention to acquire three parcels of land (hereinafter “the subject lands”) in the Parish of St George, in the island of St Kitts for a public purpose[2].  The subject lands included a condominium project that was originally called “Paradise Beach Resort” and latterly “The Angelus.  SR&O No 21 of 2006 applied to a parcel of land at Frigate Bay Estate comprising 15.032 acres; SR&O No 22 of 2006 applied to a nearby parcel of land measuring 5.000 acres; and SR&O No 23 of 2006 applied to a third parcel of land measuring 1.5027 acres. 

[2]                 On 28 December 2006, the Government, acting under section 3 of the Land Acquisition Act[3], (hereinafter “the Act”) made three declarations published in the Official Gazette[4] compulsorily acquiring the subject lands for a public purpose.  By virtue of section 3(3) of the Act, the Government became the owner of the subject lands on 18 January 2007.  Mrs Beverly Williams, Comptroller of Inland Revenue, was appointed the Authorised Officer for the purposes of the Act. 

[3]                 Despite protracted negotiations, the issues of entitlement to and amounts of compensation were not agreed upon by the persons claiming an interest in the subject lands (hereinafter “the claimants”) and the Authorised Officer. 

[4]                 Where such a situation arises, the Act at section 11(1) makes provision for the Governor-General to establish of a Board of Assessment to deal with issues of entitlement to and amounts of compensation.  On 11 July 2008 His Excellency the Governor-General appointed a Board of Assessment comprising Mr Don Mitchell CBE QC, Chairman, and Mr Edwin Glasford, Member.  There were only two persons on the Board at that time as the claimants failed to agree on a single nominee.  On 18 December 2008[5], the Governor-General appointed Mr Joseph Lancaster to the Board of Assessment.  The establishment of the Board and the appointment of members to it were published in the Official Gazette on 31 December 2008. 

[5]                 The Land Acquisition Act provides, at sections 13-17 what is to happen after the appointment of a Board.  The sections read, where relevant:

Documents, etc, to be forwarded to the Board

13.(1) Upon the appointment of the Board ... the authorised officer shall forward to the Chairman ... those of the following documents and particulars which relate to the acquisition ... of the land, ...

(a) a copy of any notification and declaration which has been published in the Gazette;

(b) a copy of the notice of acquisition;

(c) a copy of any notice issued or received by him;

(d) a copy of all statements received by him in compliance with any notice issued by him;

(e) the names and addresses of the persons whom the authorised officer has reason to believe are interested in the land; and

(f) a copy of the report required by this section.

(2) The report to be sent to the Board shall state the opinion of the authorised officer, and his reasons for such opinion, upon each of the following matters -

(a) what is a fair and proper description of the land acquired, including particulars of any buildings, trees or standing crops thereon;

(b) the approximate acreage of the land;

(c) the value of the land for the purposes of compensation under this Act

(d) ...

(e) ...

Inquiry by Board

14. Where a Board has been appointed under the Act, the Board shall hold an inquiry at a place, date and time to be fixed by the Chairman, of which not less than fourteen clear days notice shall be given to the parties concerned, and every such inquiry shall be conducted in public.

Procedure at Inquiry

15. The procedure at an inquiry before the Board, the summoning and remuneration of witnesses for attendance thereat, and all questions incidental to the inquiry shall be governed by the provisions of the laws for the time being in force relating to civil proceedings in the Supreme Court.

Provided that in the case of any doubt arising on any question of practice and procedure the same may be settled by the Chairman.

[6]                 On 30 January 2009 the Authorised Officer prepared and served Volumes I and II of her Report on the Board and all counsel representing various claimants.  Volumes I and II contained, inter alia, the Resolutions, Declarations, Authorised Officer's valuation, claims, and correspondence. 

[7]                 The Board convened its first hearing on 6 February 2009[6] and gave certain preliminary directions[7]. The Board convened another hearing on 17 July[8], but could not proceed as the Authorised Officer had not completed the necessary Volume III of her Report. 

[8]                 During the period 15-17 September 2009, the Authorised Officer made a determination in relation to those claims which were accepted and those which were rejected and notified the claimants of her decision.

[9]                 The Board conducted another hearing on 17 September 2009[9] and gave further directions[10] for the hearing to proceed.  On 22 September 2009 the Authorised Officer prepared and served Volume III of her Report on the Board and all counsel representing various claimants.  Volume III contained, inter alia, all accepted and rejected claims and valuations submitted by claimants.  On 1 October 2009 the Authorised Officer prepared and served an Addendum to Volume III of her Report on the Board and all counsel representing various claimants.  The Addendum to Volume III contained, inter alia, additional valuations submitted by claimants. 

[10]             Mr Edwin Glasford resigned from the Board on 11 November 2009 and was replaced by Mr Peter Jenkins who was appointed by the Governor-General on 16 November 2009.  Mr Jenkins' appointment was published in the Official Gazette on 19 November 2009[11].

[11]             On 1 December 2009, the Board commenced its hearings[12] into the claims of the various claimants for compensation.  On this date, the Board at the request of counsel for the claimants Rowe and Secrist ruled that all claimants previously rejected by the Authorised Officer were properly rejected, for failure to comply with earlier directions given by the Board.  The only exceptions were the Medeiros and McDonald families who had complied, were represented by counsel, and who, it was ruled, would be permitted to make representations on their behalf.  The hearing resumed on 7 December 2009[13], continued on 8 December 2009[14], and 9 December 2009[15], and concluded on 18 February 2010[16].

[12]             The Properties: The three parcels of the subject lands that were acquired by government are held under the provisions of the Title by Registration Act[17].  They are:

SRO 21/2006 SRO 27/2006	A parcel of land measuring 15.032 acres.  This parcel was previously divided into three parcels with titles registered as Book Y2 – Folio 69; Y2 – 382; and Y2 – 383.
SRO 22/2006 SRO 28/2006	A parcel of land measuring 5.000 acres.  The Board has not been able to locate in the evidence the number of the Register Book in which the title is registered.
SRO 23/2006 SRO 29/2006	A parcel of land measuring 1.5027 acres.  The Board has not been able to locate in the evidence the number of the Register Book in which the title is registered.

Table 1: The acquired properties

The total property acquired consisted of three parcels of land totalling 21.535 acres.  The Angelus Project was a condominium project with accompanying buildings and structures constructed on a part of one of the three parcels, Parcel Y2 – 69, originally measuring 15.032 acres.  The properties registered at Y2 - 382 and Y2 - 383 had previously been severed from the larger parcel Y1 - 69.  The titles to the individual condominiums constructed on Y2 – 69 were registered and held under the provisions of the Title by Registration Act and the Condominium Act, 1976[18].  The registered Declarations of Covenants, Conditions and Restrictions indicate that the Condominium was declared only over the property registered at Book Y2 folio 69[19].  The Board has not been able to locate in any of the evidence the registered titles of the other two parcels of land acquired by Government.  They will continue in this Award to be referred to as the 5.000 acre and the 1.5027 acre parcels.

[13]             The long title of the Condominium Act reads,

An Act to facilitate the sub-division of land into parts that are to be owned individually and parts that are to be owned in common and to provide for matters incidental thereto and connected therewith.

Titles to condominium units are registered[20] with the Registrar of Titles under the provisions of the Title by Registration Act.  Only land under the operation of the Title by Registration Act may be governed by the provisions of the Condominium Act.  Section 3 of the Condominium Act provides that properties brought under the Act shall comprise only freehold land and interests, if any, appurtenant to that land.  Thus, timeshare interests are not registerable under this Act.  The valuation of a condominium unit will include a proportionate share of the common areas held by the condominium unit owners.

[14]             The condominium had been declared over the parcel registered as Y2 - 69.  There were said to be 108 Units constructed on it.  It appears that 53 of them were sold by the developers, leaving 55 in the possession of the developers.  Rowe and Secrist became entitled to the unsold Units as a result of an order of Belle J[21].  Of the 53 sold units:

(a) 8 units are rejected claims by the Authorised officer (McDonald, Ward and Medeiros).  If the Board rejects those claims, Rowe and Secrist would be entitled to the compensation paid for them; and

(b) the balance were accepted by the Authorised Officer.

[15]             The Claimants:  Richard Rowe and Mark Secrist, by the same consent order mentioned above, are authorised to represent some 125 claimants in claims relating to the subject property.  Their solicitors, Martin Kenney & Co, also separately represent four owners of 6 condominium Units.  Other persons made claims for compensation based on a number of other alleged entitlements.  Some were represented by attorneys, and others were not.  After the remaining Units registered to owners other than those represented by Martin Kenney & Co are deducted, Rowe and Secrist claim to be entitled to the balance of the compensation payable by government in relation to Y2 – 69, and the entirety of the compensation payable in relation to Y2 – 382, and Y2 – 383.  No claim for compensation has been made by anyone in relation to the other two parcels of land acquired by Government.

[16]             The claimants whose claims were placed before the Board were, in alphabetical order: 

Name of Claimant	Particulars of the interest claimed, and the location in the evidence	Whether accepted or rejected by the Authorised Officer, and the reason why rejected
Armstrong, Frank B	Unpaid bills totaling EC$6,236.01. Vol III tab 34.	Rejected No interest in land
Bellis, Roland & Gillian	Units 204A, 205A, 206A. Certificate of Title. Cooper Kauffman Valuation. Vol I p.233; Vol III tab 11.	Accepted
Benton, Roy & Gen, represented by Martin Kenney & Co	Units 210A, 211A and 212 A. Certificate of Title. Mortgage with National Bank. BCQS Valuation. Vol I p.235; Vol III tab 12.	Accepted
Buchanan, James	Unpaid bills in the sum of US$10,000.00. Vol III tab 35.	Rejected No interest in land
Cable & Wireless	Unpaid bills in the amount of EC$90,615.99. Vol III tab 29.	Rejected No interest in land
Cooper, Howard represented by Dr Veira	Units 202C and 203C. Certificate of Title. Relies on Cooper Kauffman Valuations. Vol 1, p.236; Vol III, tab 13.	Accepted
Cote, David & Elizabeth, represented by Mr Rawlings	Units 310D, 311D and 312D. Sale and Purchase Agreement of 22 July 2004. Deposit of US$78,000.00 on a total purchase price of US$180,000.00 paid. No Certificate of Title. Vol I p.243; Vol III tab 36.	Rejected No interest in land
Crossman, Jay & Danya	Timeshare interest purchased for US$15,869.00. No Certificate of Title. Claim submitted out of time. Vol I p.284.	Rejected No interest in land Claim submitted out of time
John Davison for ICC Cricket World Cup	Un-refunded payments of US$69,644.70 in 2006 for rental of 30 rooms. Vol III tab 38; Vol IIIA tab 21.	Rejected No interest in land
Drevs, Mr & Mrs Walter, represented by Dr Veira	Units 304B, 305B, and 306B. Certificate of Title. Edwin Glasford Valuation. Relies on Cooper Kauffman Valuations. Vol I p.292; Vol III tab 14; Vol IIIA tab 9.	Accepted
Dunn, Paul & Chae, represented by Martin Kenney & Co	Units 301A, 302A and 303A. Certificate of Title. BCQS Valuation. Vol I p.294; Vol III tab 15.	Accepted
Dunning, Robert & Janet, represented by Ms Herbert-Thompson	Unit 303C. Sale and purchase agreement. Part paid. No Certificate of Title. Vol	Rejected No interest in land
Fraites, Derrick V	Judgment in suit SKBHCV 2005/0206 in the amount of EC$11,670 plus costs. Vol III tab 32.	Rejected
Franconeri, Alberto & Anne, represented by Dr Veira	Units 201A, 202A, and 112 A. Certificate of Title. Cooper Kauffman Valuation. Vol I p.296; Vol III tab 16.	Accepted
Groesbeck, Dr & Mrs Jess, represented by Dr Veira	Units 104A, 105A and 106A. Certificate of Title. Cooper Kauffman Valuation. Vol I p.305; Vol IIIA tab 7.	Accepted
Harper, Dana, & Herbert, Kyle, represented by Dr Veira	Units 110A, 111A and 112A Certificate of Title Cooper Kauffman Valuation. Vol I p.299; Vol III tab 17.	Accepted
Hayes, Maureen, represented by Dr Veira	Units 305A and 306A. Certificate of Title. Cooper Kauffman Valuation. Vol III p.302; Vol III tab 18.	Accepted
Hobson, Michael	Magistrate's Court judgement, which appears to have been previously settled. Vol III tab 31.	No claim before the Board.
Hunter, Larry & Gail, represented by Ms Herbert-Thompson	Unit 302C. Sale and purchase agreement. Part paid. No Certificate of Title. Vol 1.	Rejected No interest in land
Island Purified Water	Unpaid bills in the amount of EC$2,150.00. Vol III tab 39.	Rejected No interest in land Claim submitted out of time
Lesak, Robert, and Sean Wischover, represented by Ms Herbert-Thompson	Units 311B and 312B. Certificate of Title. Vol I p.334; Vol III tab 20.	Accepted
McDonald, Gary & Cathy, represented by Ms Herbert-Thompson	Unit 301C. Sale and purchase agreement. Part paid. No Certificate of Title. Vol I p.340; Vol III tab 40.	Rejected No interest in land
Mederios, Leonard & Mary DelPrete, represented by Mr Eddy	Units 213B, 214B and 215B. Sale and purchase agreement of 11 February 2005. Deposit of US$84,004.25 paid on a total price of US$190,000.00. No Certificate of Title. Cooper Kauffman Valuation. Vol IIIA tab 5.	Rejected No interest in land
Mitcham, Constance V and Pearline O Sylvester, represented by Ms Mitcham	Units 210C, 211C and 212C. Memorandum of Transfer executed on 18 November 2005 on payment of a total purchase price of US$125,000.00. No Certificate of Title. Vol I p.353; Vol III tab 21.	Accepted
Mitchell, Joseph	Unit 301B. Certificate of Title. Cooper Kauffman Valuation. Vol I p.358; Vol III tab 22.	Accepted
Morton, Wycliffe, & Associates	Unpaid bills of US$10,000.00 and EC$33,000.00 for valuation services. Vol III tab 41.	Rejected No interest in land
Mueller, Stephen	Units 205C and 206C. Certificate of Title. Relies on Cooper Kauffman Valuations. Vol I p.361; Vol III tab 23.	Accepted
Nicholls, Fitzroy	One wooden hut. Sale and purchase agreement of 1 August 2005 in the amount of EC$7,000.00. Vol I p.365; Vol III tab 42.	Rejected No interest in land
Nicholls, Rosalind, represented by Ms Mitcham	Units 207C, 208C and 209C. Memorandum of transfer executed on 18 November 2007 on payment of a total purchase price of US$125,000.00. No Certificate of Title. Vol 1 p.368; Vol III tab 24.	Accepted
RBM Nursery & Landscaping Services, Melissa & Rodney Flemming	Unpaid bill of EC$20,006.70 for landscaping services. Vol III tab 43.	Rejected No interest in land
Robinson, Christine, represented by Dr Veira	Units 210B, 211B and 212B. Certificate of Title. Cooper Kauffman Valuation. Vol I p.368; Vol III tab 25; Vol IIIA tab 11.	Accepted
Rowe, Richard, & Secrist, Mark and others, represented by Martin Kenney & Co	Those 67 condos built on the property registered at folio Y2 - 69 in Blocks, A, B and C of The Angelus Resort and unsold by BMT, and their associated common areas; All of Block D on Book Y2 - 69, and its associated common areas. All of the lands registered at Book Y2, - 382; All the lands registered at Book Y2, - 383. Certificates of Title resulting from judgment of Belle J dated 11 December 2008. National Bank holds mortgage. BCQS Valuation. Vol I p.305; Vol III tab 19.	Accepted
St Kitts-Nevis-Anguilla National Bank Ltd represented by Kelsick Wilkin and Ferdinand, subject to a consent court order in Claim No SKBHCV2009/0273	1. Mortgage by BMT Ltd with an outstanding balance as of 12 February 2007 of EC$4,348,486.77; 2. Mortgage by BMT Ltd with an outstanding balance as of 12 February 2007 of EC$1,016,705.76; 3. Mortgage by Benton, Roy & Gen, with an outstanding balance as of 12 February 2007 of EC$360,962.17; 4. Wynne, Mary B & Robert with an outstanding balance as of 12 February 2007 of EC$810,937.96. Vol I; Vol III tab 10; plus further disclosure on 6 October 2009.	Accepted
St Kitts Office Machines Ltd	Unpaid bills amounting to EC$13,550.00 for office equipment. Vol III tab 44.	Rejected No interest in land
Sentz, Daniel J, represented by Dr Veira	Units 102A and 103A. Certificate of Title. Cooper Kauffman Valuation. Vol I p.381; Vol III tab 26; Vol IIIA tab 8.	Accepted
Social Security Board	Unpaid contributions in the amount of EC$457,500.54. Vol III tab 30.	Rejected No interest in land
Stapleton, Denise	Judgment in the Magistrate's Court in the sum of $8,424.41. Vol III tab 33.	Rejected No interest in land
TDC Ltd	Unpaid bills in the amount of EC$12,724.21 as of 29 October 2007. Vol III tab 45.	Rejected No interest in land
Ward, Joseph, represented by Ms Mitcham	Units 102B and 103B. Awarded in consideration of loans and advances in the amount of US$150,000.00 made to BMT by resolution of the Board of BMT. No mortgage registered. Vol I p.383; Vol III tab 46.	Rejected No interest in land
Warnell, Paul & Barbara, represented by Dr Veira	Units 310A, 311A and 312A. Certificate of Title. Cooper Kauffman Valuation. Vol I p.387; Vol III tab 27; Vol IIIA tab 10.	Accepted
Water and Electricity	Unpaid bills in the amount of EC$502,522.91 for electricity and EC$103,039.49 for water. Vol III tab 28.	Rejected No interest in land
Willcutts, Robert & Donna	Timeshare interest only in consideration of a payment of US$16,700.00. No Certificate of title. Vol III tab 47.	Rejected No interest in land
Wynne, Robert & Mary	Units 107A, 108A and 109A. Certificate of Title. Mortgage held by National Bank. Vol I p.305.	Accepted

Table 2: The claims

[17]             The Authorised Officer accepted[22] the claims of National Bank which held registered mortgages against several of the condominium units that were the subject to claims for compensation.  The Authorised Officer also accepted all claims of persons who held Certificates of Title or other legal instrument, in her opinion sufficient to establish an interest in the subject lands.  Such acceptance was subject to the Authorised Officer's opinion on the value of the land, and subject also to the mortgages of the lands in favour of National Bank.  The Authorised Officer accepted that Rowe and Secrist, in their representative capacities, were entitled to the remainder of the compensation after all persons with legal interests in the subject lands and the mortgages have been paid.  These accepted claims are also subject to payment of arrears in property taxes in accordance with the conditions of the Certificates of Title.

[18]             The Authorised Officer rejected a number of claims based on the wording of the Land Acquisition Act which suggested that only persons who have a legal interest in the subject lands could claim compensation.  Based on this interpretation of the law she rejected the claims by those persons who relied on court judgments, and bills for services rendered and goods supplied. 

[19]             The Authorised Officer rejected the claims of Jay and Danya Crossman and Robert and Donna Wilcutts who had each been sold a “timeshare” interest in one or the other of the condominium Units.  She found that no part of the project was registered as a timeshare project and that unless title to a timeshare interest is registered in accordance with the Title by Registration Act and the St Kitts and Nevis Vacation Plan and Time Share Act 2005, no interest in land exists.  No timeshare interest in the lands in question had been registered.

[20]             The Authorised Officer also rejected those claimants who had paid deposits towards the purchase of units at The Angelus, but which sales were never completed, on the basis that a compulsory acquisition of lands frustrates any agreement for sale of the said lands.  She found that in such cases it is the vendor who is entitled to the compensation, and the prospective purchaser must make a claim against the vendor. In one case, she found that a claim had been made on the basis of two units having been given as collateral for a loan, but no mortgage having been registered, the claimant had no legal interest in the land and was not entitled to compensation.  She accepted those claimants who had paid in full for their condominiums, but who had not obtained Certificates of Title.

[21]             The Law:  The entitlement of the Claimants to compensation in this dispute arise primarily under the provisions of sections 2 and 8 of the 1983 Constitution of St Kitts and Nevis[23] which, so far as they are relevant, read:

2.. This Constitution is the supreme law of St Christopher and Nevis and, subject to the provisions of this Constitution, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.

...

8.(1) No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except for a public purpose and by or under the provisions of a law that prescribes the principles on which and the manner in which compensation therefor is to be determined and given.

[22]             Section 8 of the Constitution provides that no property shall be acquired by Government unless it is for a public purpose and compensation is paid to the persons having an interest in it.  The Constitution does not protect only interests in land, but protects every form of private property. The Edmund Lawrence case[24] from St Kitts long ago established that the word “property” in the Constitution should be given a wide scope, applying equally to abstract concepts of property, including money.

[23]             The applicable law is the Land Acquisition Act.  Section 11 provides that:

Determination of questions by Board of Assessment

11. (1) All questions and claims relating to the payment of compensation under this Act and to the apportionment of such compensation shall, save as hereinafter provided, be submitted to a Board of Assessment to be appointed in each case in accordance with the provisions of section 12..

     (2) A Board of Assessment shall have full power to assess, award and apportion compensation in such cases, in accordance with the provisions of this Act.

...

Award of Board

17. (1) At the conclusion of the inquiry the Board shall decide upon the claims for compensation and apportionments submitted to them and shall make an award under the hand of the Chairman who shall cause the same to be filed in the High Court. 

     (2) The decision of the majority of the members of the Board with respect to the compensation to be paid shall be deemed to be the decision of the Board, and, if all the members of the Board differ, the mean between the amount decided upon by the Chairman and the one of the amounts decided upon by the other two members of the Board which approximates most nearly to the amount decided upon by the Chairman shall be deemed to be the compensation awarded by the Board.

     (3) An appeal shall lie against a decision of the Board to the Court of Appeal.

...

Rules for assessment of compensation

19. Subject to the provisions of this Act, the following rules shall apply to the assessment and award of compensation by a Board for the compulsory acquisition of land -

(a) the value of the land shall, subject as hereinafter provided, be taken to be the amount which the land, if sold in the open market by a willing seller, might have been expected to have realised at a date twelve months prior to the date of the second publication in the Gazette of the declaration under section 3:

...

Interest

21. The Board, in awarding compensation, may add thereto interest at the rate of four percentum per annum, calculated from the date upon which the authorised officer entered into possession of the land acquired until the date of the payment of the compensation awarded by the Board.

Rules as to costs

22.. (1) The authorised officer shall pay to the claimant the reasonable costs incurred by him in or about the preparation and submission of his claim, unless the Chairman considers that the claimant has failed to put forward a proper claim within a reasonable time after the service of the notice under section 7, or that the claim put forward is grossly excessive or that he has been a party to some deceit or fraud in respect of his claim.

     (2) ...

     (3) ...

    (4) Subject to the preceding provisions of this section, the costs shall be in the discretion of the Chairman who may direct to and by whom and in what manner those costs or any part thereof shall be paid, and he may in any case direct such costs to be taxed by the Registrar of the High Court.

     (5) The mode of enforcing any order as to costs shall be in the manner prescribed by the practice of the Supreme Court.

      (6) ...

Payment of compensation, etc

29. All amounts which have been awarded by way of compensation under this Act, including interest and costs to be paid by the authorised officer, and all other costs, charges and expenses which shall be incurred under the authority of this Act, shall be paid out of the Treasury on the warrant of the Minister of Finance.

[24]             The Title by Registration Act was brought into effect throughout the Colony of the Leeward Islands by the last sitting of the General Assembly of the Leeward Islands on 1 February 1887.  It is one of the earliest enactments of the Torrens system of land registration outside of Australia, where it originated.  The Act provides[25] that lands are brought under its operation when a first Certificate of Title is issued in respect of them.  On the issuing of the first Certificate of Title to a parcel of land all deeds and former titles by which the land was held cease to have any force or effect[26].  Section 5 reads:

5.(1) From and after the time when any land is brought under the operation of this Act, all dealings with such land shall be in the forms and governed by the principles set forth in this Act; and all such dealings shall take effect from the date and act of registration, and not from the date of the execution or delivery of any instrument or document, or otherwise, save as in the Act provided.  ...

(2) Dealings with lands brought under the operation of this Act, which are not in accordance with the provisions of this Act, shall operate as contracts only, and shall not confer any right in respect of the land, except the right of enforcing the contract as against the parties, and persons claiming, otherwise than as purchasers or mortgagees for value, under such parties.

[25]             The correct test for valuation:  This is provided by section 19 of the Land Acquisition Act as set out above at paragraph [23].  The essence of the test is sale in the open market by a willing seller.  The correct valuation date under section 19 is 18 January 2006, ie, 12 months prior to the date of the second publication in the Gazette of the Declaration of Acquisition. 

[26]             The condition of the subject property at the material time is relevant to the amount of compensation due to be paid by Government.  There in no dispute that the Angelus Project was a failed one at the prescribed date, further development of which had been stymied by poor management, litigation, and conflicting claims.  There is a dispute as to whether some of the condominium Units had been cannibalised at the material date for valuation of 18 January 2006.  Williams Architectural, the valuer of the Authorised Officer, used an assumption of cannibalisation as a basis for applying “multipliers” which have the effect of reducing the valuation.  Such cannibalisation as occurred does not appear to this Board from the evidence to have affected any of the structures as at 18 January 2006, and was probably limited to fittings and fixtures.  In any event, at the hearing counsel for the Authorised Officer withdrew the multipliers in question.

[27]             Another negative factor affecting the valuation of the subject lands is described by the phrase “litigation blight”.  The High Court in Suit No 222 of 2003[27] had granted a freezing Order relating to the subject lands on 27 January 2006. Counsel for Rowe and Secrist argue that there was no real litigation blight affecting the value of the property at the material time of 18 January 2006 because that date is prior to the date at which the High Court granted the freezing order of 27 January 2006.  In any event, counsel submitted, the freezing order expressly allowed the Resort to continue to be operated and for condominiums to be sold, though under strict conditions, and the Resort continued in operation after a fashion.  It is noted however that the suit had been filed since the year 2003.  Additionally, there appear to have been other judgments awarded against the project.  The claims of Michael Hobson, Derrick Fraites and Denise Stapleton were based on earlier judgments awarded against the developers.

[28]             The evidence before the Board:  This consisted almost entirely of the claims that were made to the Authorised Officer, and additional claims that were made to the Board, and further written claims and submissions admitted by the Board.  Most of them were collected together and placed in the Authorised Officer's Report to the Board, though some supplemental documents in support of some of the claims were served, with the leave of the Board, after the Board had commenced its sittings. 

[29]             None of the claimants testified viva voce or was cross-examined.  Three of those valuers who had submitted valuation reports testified orally and were cross-examined.  They were the only valuers whose valuation reports were relied on by the claimants and considered by the Board.  These were Mr Victor Williams of Williams Architectural, Mr Douglas Gillanders of Cooper Kauffman, and Ms Charlotte Low of BCQS of Tortola.  Mr Williams gave evidence on behalf of the Authorised Officer, Mr Gillanders on behalf of several of the Unit Owners, and Ms Low on behalf of the clients of Martin Kenney & Co. 

[30]             Williams Architectural.  The Authorised Officer relied on the valuation report[28] submitted by Williams Architectural.  Mr Williams of Williams Architectural is a qualified architect, but did not claim to specialise in or have any formal training or expertise in the valuation of property or land.  His valuation was done some time in or around November 2006, and was dated 30 December 2006.  Mr Williams also submitted a written Assessment[29] of the other valuation reports relied on by the claimants.  Mr Williams assigned a value of US$135,000.00 per acre to the land, and US$75.00 per sq ft to the condominiums.  He provided a range of values for the whole of the subject property of between US$5,079,863.80 (the forced sale assigned value) and US$10,305,229.00 (the replacement value assigned).  He assigned a market value of US$6,667,321.24, upon which the Authorised Officer relies, to the entire property.

[31]             Mr Williams testified before the Board on 18 December 2009, and was subjected to cross-examination by the claimants.  We accepted his testimony that The Angelus had (1) been subject to litigation blight even before the freezing order of 27 January 2006, and (2), that due to bad management, the project had the reputation of a failed project at the time prescribed for valuation.  These factors would have negatively impacted the market value of the property at the prescribed date.  The Board accepted that Ms Mitcham, Ms Sylvester and Ms Nicholls had purchased Units at The Angelus in November 2005 at a much reduced price.  The suggestion made by the Authorised Officer was that these depressed prices reflected the true market value of the condominium Units at the time of the sales.

[32]             Mr Williams did not value the property as of the date required in the Act, 18 January 2006, but rather as of the date he was instructed, ie, in November 2006.  He did not appear to have taken into account that land values in St Kits were increasing in the period 2005-2006.  This was primarily due to the successful completion of the Marriot Hotel which bordered on the subject property; an increase in airline seats from the USA to St Kitts; and the opening up for development of the South East Peninsula.  He does not appear to have consulted any of the comparable sales in the area that are recorded in the Land Registry to obtain values.  He did not adequately consider factors such as St Kitts being a desirable tourism destination and the Frigate Bay area being an established tourism development area, the ocean frontage enjoyed by the property, the limited amount of ocean front property available in St Kitts, and the fact that the market was improving during the period 2005-2006.  Nor did he consider the nearby prestigious golf course, the fact that the property is only 10 minutes drive from the Capital of Basseterre, and 3 miles from the airport.  Nor did he appear to take into account that there is limited beach land available in St Kitts for tourism development.  His values for the condominiums do not appear to have included a proportionate share of the common facilities.  His valuation report makes no reference to the tests given in the Land Acquisition Act.  He described his report as a standard assessment of the value of the subject lands, not a valuation specifically for the purposes of the Land Acquisition Act. His valuation report did not set out in any detail the factors that he took into account in arriving at his values.

[33]             The Board did not accept Mr Williams’ suggestion that the values of the condominiums had been reduced by “cannibalisation”.  The evidence is contested, eg, by the evidence of Mr Sentz and Mr Fraites.  Government had encouraged owners to sell and remove their personal possessions from the Units after acquisition, and the evidence is that many did so.  In any event, such cannibalisation as Mr Williams saw must have occurred after the prescribed date.

[34]             Cooper Kauffman.  Mr Gillanders appears to have been instructed from time to time in the period between February and September 2007 to conduct valuations of condominium Units at The Angelus Resort.  These were submitted to the Authorised Officer and were produced to the Board in her Report. The valuation reports provide valuations as at the date stated on each report.  Additionally, Mr Gillanders testified to the Board and was subject to cross-examination. 

[35]             Mr Gillanders came to values for the condominiums examined by him ranging between US$625,000.00 and US$645,000.00 for 3-unit condos.  This equates to an average price of between US$375.00 and US$387.00 per sq ft. 

[36]             We accepted that some of the individual units were occupied and furnished by the occupants as at the date Mr Gillanders did his valuations.  However, furniture and fittings, though important in normal valuations, are not relevant to a valuation under the Land Acquisition Act.  The dates as of which Mr Gillanders did his valuations were incorrect.  He did not indicate what the market value would have been on 18 January 2006.  The procedure he used for doing the valuations, though impeccable for a normal valuation, was not acceptable for ascertaining valuations required by the Land Acquisition Act.  He used comparable sales in other new and thriving condominium projects.  He did not, for example, take into account that The Angelus was a failed condominium project at the prescribed date for valuation.

[37]             BCQS.  Ms Low submitted a valuation report[30] dated May 2009.  She also submitted[31] a Response dated 14 September 2009 to the assessment of Williams Architectural.  Ms Low testified before the Board on 9 December 2009 and was subject to cross-examination.

[38]             Ms Low appears to have been instructed to value only one of the three parcels of acquired land.  This is the parcel registered at Y2 – 69, from which, as previously described, two small parcels, Y2 – 382 and Y2 – 383 had been severed.  Rowe and Secrist in their representative capacity had acquired title to all three parcels by a court order just prior to the acquisition.  Parcel Y2 – 69, Y2 – 382 and Y2 – 383 were the only ones that had been claimed by her clients before the High Court, and to which they had been granted title.  These were the ones that she valued.

[39]             Ms Low was the only one of the valuers who made an effort to calculate the values of the acquired properties as of the relevant date, 18 January 2006, and her valuation report was very professionally prepared.  She arrived at figures of between US$168.00 per sq ft and US$179.00 per sq ft for the values of the various condominium Units examined by her.  She placed a value on the land of US$9.00 per sq ft at the relevant date.

[40]             The Board considered that Ms Low's values were too high.  She relied too much on the sale of similar condominium units in successful condominium projects in the Frigate Bay area.  We do not consider that she gave a sufficient discount due to the fact that The Angelus was a failed and litigation-blighted project, the units of which were not freely susceptible to sale by a willing seller in an open market.  The very advantageous prices obtained by Mitcham, Sylvester and Nicholls in November 2005 rather suggest that values were in free-fall prior to the valuation date.  The Board had to determine and to consider what was the formula for valuation that was fairest to all of the parties in this dispute. 

[41]             The legal submissions:  Dr Veira represented several owners of condominium Units at The Angelus.  He submitted[32] that his clients had had no prior notice of the intended acquisition by Government, and so had been unable to secure the necessary valuations as of the prescribed date of 18 January 2006.  However, he submitted, several of them had obtained subsequent valuations, and his clients relied on the values therein stated.  He urged that the Cooper Kauffman valuation reports be accepted as they related to the condition of the Units before the owners had vacated them and before they had become vandalised.  The Board considers that the Cooper Kauffman valuations do not, as has previously been mentioned, deal with the estimate of valuations as of the 18 January 2006 as prescribed by the Act.  Also, the Cooper Kauffman valuations were “normal” valuations and did not take into account the factors that they should have under the Act.

[42]             Mr Eddy represented Mr and Mrs Medeiros who had entered into an Agreement of Purchase and Sale on 11 February 2005 for the purchase of Units 213B, 214B, and 215B.  The total price was to have been US$190,000.00, and they had paid a deposit of US$60,000.00 and a further payment subsequently of US$24,004.25, to a total of US$84,004.25.  They had never completed, and had no Certificate of Title.  After their property had been compulsorily acquired they had obtained a Cooper Kauffman valuation of their unit at US$626,000.00.  Mr Eddy submitted[33] that under the Land Acquisition Act an owner other than the legal owners of the land might have an interest, ie, legal, equitable, or other interest, that might entitle the owner to compensation.  He submitted that the Medeiros had an interest in the acquired lands which entitled them to compensation.  At the very least, he submitted, they were entitled to repayment of their payment of US$84,004.25.  He urged that they had an equitable claim to compensation.

[43]             Kelsick Wilkin & Ferdinand represented the St Kitts Nevis and Anguilla National Bank and filed and served submissions[34] on the bank's behalf.  The bank holds several mortgages over various condominiums and other property, and has made a claim for compensation.  The bank claims a contractual right to interest at the rate provided for in the loan documents and mortgages.  As of 30 September 2009 these loans and the amounts claimed were as follows:

Mortgagors	Balance due in EC$
BMT Limited Loan #1990285 Principal and interest:                EC$5,506,952.51 Interest continues to accrue at $1,205.00 per day. [44]                Loan #1990307 Principal and interest:                EC$1,298,786.86 Interest continues to accrue at $290.39 per day. Sub-total	6,805,739.37
Roy & Gen Benton Loan #780501 Outstanding principal and interest Interest continues to accrue at $98.25 per day	455,380.45
Mary and Robert Wynne Loan #780601 Outstanding principal and interest Interest continues to accrue at $157.01 per day	961,824.52

Table 3: National Bank's claims for balance of loans and interest

           

[45]             Rowe and Secrist oppose[35] the bank's claims for interest at the contractual rate of 11% beyond the date of acquisition as being in excess of the statutory rate of 4% applicable under section 21 of the Land Acquisition Act.  Rowe and Secrist submit that, should the Board award interest at the rate of 11%, as claimed by the bank, their clients would be entitled to recoup the 11% interest from the date of acquisition from the Government.  Alternatively, Rowe and Secrist submit that the bank is entitled at most to interest at the rate of 4%, to be paid to the bank by the Government, from the date of acquisition. 

[46]             Kelsick Wilkin & Ferdinand submit that the bank's interest in The Angelus property arises from the contractual agreements which gave rise to the relevant mortgages.  This contractual interest, they submit, is as much a property right as is the principal sum.  They rely on the dictum of Sir Neville Peterkin in the Edmund Lawrence case[36] when he said,

The obligation for payment of just compensation is a necessary incident of the power of the compulsory acquisition of property both under the doctrine of the English common law as well as under the Continental doctrine of eminent domain subsequently adopted in America.  The Constitution of St Kits and Nevis raised this obligation to pay compensation for the compulsory acquisition of property to the status of a fundamental right ...

and[37]

By judicial pronouncements the word 'property' is given a broad scope.  It has been held that there was no reason why the word 'property' should not be given a liberal and wide connotation or should not be extended to those well-recognised types of interest which have the insignia or characteristics of proprietary rights.  In our jurisdiction, it has been extended to include money (see Inland Revenue Commissioner and Attorney-General v Lilleyman (1964) 7 WIR 496).  I am of the view that section 6 [of the 1983 St Kitts and Nevis Constitution] applies equally to concrete as well as abstract rights of property.

[47]             Ms Mitcham made submissions[38] on her own and Ms Sylvester’s and Ms Rosalind Nicholls’ behalf.  They relied on the statement of the basic facts as outlined in the statement of Ms Nicholls.  They claim to be compensated by Government on the basis that they had paid in full for their Units, had had Memorandums of Transfer executed by the vendors, and had been kept out of title by Rowe and Secrist having filed caveats that prevented the Registrar from registering their titles.  She also represented some of the part-paid claimants, and relied in part on the submissions of Ms Herbert-Thompson with whom she agreed.

[48]             Martin Kenney & Co on behalf of their clients Rowe and Secrist resisted the claims by Ms Mitcham and her clients.  In relation to the fully paid Units, they relied[39] on the English case of Lloyds Bank Plc v Carrick and Another [1996] 4 All ER 630 and submitted in response that, under the system of title registration, an unregistered equitable interest cannot be binding against third parties. In this case, Mrs Carrick had purchased a property from her brother-in-law, Mr Carrick.  She had paid the full purchase price and had assumed possession, but had failed to register her interest in the land.  Mr Carrick, as legal owner, had mortgaged the property with Lloyds Bank, but had defaulted in his obligations to the bank, and it had foreclosed on the property. Mrs Carrick argued that a trust arose which protected her from the bank, on the basis that Mr Carrick was a bare trustee and as such held no beneficial interest in the property.  The Court of Appeal rejected this contention.  It was admitted by all parties that Mr Carrick was a bare trustee as Mrs Carrick had paid the purchase price in full.  Mr Carrick no longer maintained any beneficial interest in the property.  However, due to the land registration system, Mrs Carrick's equitable interest could not bind third parties with subsequent registered interests.  Her interest was binding only as between herself and Mr Carrick.  Lord Morritt said this at page 637:

The payment of £19,000 by Mrs Carrick to Mr Carrick did not as such and without more give her any interest in the maisonette.  Nor, prior to the conclusion of the contract, were the circumstances such that Mrs Carrick could assert that her brother-in-law held the maisonette on any trust for her benefit.  The source and origin of the trust was the contract ... Mrs Carrick is unable to establish the bare trust as against the bank for it has no existence except as the equitable consequences of the contract. Accordingly, I reject the contention founded on the bare trust

...

It is true that on this footing the ultimate position of Mrs Carrick with the benefit of a specifically enforceable contract may be worse than it would have been if there had been no contract.  But that is because she failed to do that which Parliament has ordained must be done if her interest is to prevail over that of the bank, namely to register the estate contract.

[49]             Martin Kenney & Co submitted that section 5(2) of the Title by Registration Act expresses the principles repeated in the Lloyds Bank case.  Dealings with registered land in St Kitts which are not in accordance with the provisions of the Act operate, they submitted, as contracts only.  They do not confer any right in respect of the land, except the right of enforcing the contract as against the parties, and as persons claiming, otherwise than as purchasers or mortgagees for value, under such parties.  This exception would apply, for example, to volunteers, which is not the case here.  There is always room for persons claiming to be entitled to have their titles registered to apply to the Registrar of Titles to have their interests placed on the Register.  Alternatively, they submitted, they may bring suit against the registered proprietor, either for specific performance of their contracts, or for damages for breach of contract. 

[50]             Ms Herbert Thompson represented the McDonald, Hunter, and Dunning claimants.  They had entered into Agreements of Purchase and Sale on 21 September 2004 relating to Units 301C, 302C, and 303C.  They had paid US$96,853.30 on account of the full purchase price of the Units.  They had no Certificates of Title.  They had not paid the full purchase price.  She submitted[40] that they had, never the less, acquired a beneficial interest in the properties, and held an interest in the properties for the purposes of the Land Acquisition Act.  She urged that the Board had the authority to assess, award and apportion compensation to these claimants.

[51]             In support of her clients' claims, she submitted that section 8 of the Land Acquisition Act referred to “owners of the land or persons interested therein ...”.  She submitted that the claimants are the real beneficial owners of the property under a trust.  She cited the textbook Equity and the Law of Trusts p.152,

Numerous cases from the middle of the seventeenth century onwards establish the general proposition that where there is a contract for the sale of land the purchaser becomes the owner in equity of the land or, as Lord Hardwicke put it, the rule is that the vendor of the estate is, from the time of his contract, considered as a trustee for the purchaser.

She also cited The Law of Real Property, p.601,

Upon the execution of a contract for sale, the purchaser at one becomes the owner in equity.  The owner obtains an immediate equitable interest in the property contracted to be sold.  The equitable ownership is a proprietary interest, enforceable against third parties.  Also, as between the parties to the Agreement for the sale of land, the contract creates a relationship of trustee and beneficiary, as the vendor is said to be the trustee for the purchaser, and the purchaser to be beneficial owner.

[52]             Ms Herbert-Thompson also cited a number of cases in support of her submissions.  In particular, she referred the Board to:

(1) Lysaught v Edwards (1876) 2 ChD 499, per Sir George Jessel MR, “The moment you have a valid contract for sale, the vendor becomes in equity a trustee for the purchaser of the estate sold, and the beneficial ownership passes to the purchaser, the vendor having a right to the purchase money, a charge or lien on the estate for the security of that purchase money, and a right to retain possession of the estate until the purchase money is paid, in the absence of express contract as to the time of delivering possession.”

(2) Shaw v Foster (1872) LR 5 HL 321, where in the opinion of Lord Chelmsford, “According to the well-known rule in equity, when the contract for sale was signed by the parties, Sir William Foster (the vendor) became a trustee of the estate for Pooley (the purchaser) and Pooley, a trustee of the purchase money for Sir William Foster.”

(3) Hillingdon Estates Co Ltd v Stonefield Estates Co Ltd (1952) Ch 627, where it was held that in the case of a compulsory acquisition order which does not immediately vest title in the acquiring authority, the purchaser on a contract for sale must complete.

(4) Lim Kim Som v Sheriffa Taibah bte Abdul Rahman [1994] 1 SLR 393, a case from Singapore, where the owner of compulsorily acquired property does not normally lose his title in his property until the award for compensation has been made, possession of the property has been taken by the Government, and an endorsement has been made in the Registry of Deeds.  In that case it was held that the contract could still have been performed after the notice of compulsory acquisition, so long as the compulsory acquisition had not been completed.

(5) She sought to distinguish the case of E Johnson (Barbados) Ltd v NSR Ltd (1997) AC 400, where it was held that a contract for the sale of land may be frustrated by compulsory acquisition.  In that case, NSR had agreed to purchase a lot of land from Johnson.  A deposit was paid and completion was fixed for a later date.  Prior to the date for closing, a notice was issued under the Barbados Land Acquisition Act.  NSR sued for the return of its deposit, and the vendor counterclaimed for specific performance.  Under the Barbados Act, the notice enabled the government to do a number of things preparatory to compulsory acquisition, but did not have the effect of vesting the land in the government until a further notice was published.  The Privy Council held that the publication of the first notice did not frustrate the contract.

[53]             Martin Kenney & Co resisted the claims of Ms Herbert-Thompson's clients on the same basis as they resisted the claims by Ms Mitcham's clients.  They submitted that part-payment is insufficient to give rise to an equitable interest in land, and her clients were not entitled to compensation from the Government, or to have any portion of the compensation that would otherwise be paid to Rowe and Secrist. 

[54]             Mr Gossai, on behalf of the Authorised Officer, urged[41] the Board to rely partly on the valuations given by Mr Williams.  In a surprise and novel proposal in his final written suggestions, Mr Gossai urged the Board to rely on the sums paid by Ms Mitcham, Ms Sylvester, and Ms Nicholls in November 2005 as demonstrating the market value at the prescribed time for valuation, 18 January 2006.  They had, he submitted, purchased their Units a mere two months before the prescribed valuation date, and these prices were the best indicator, he urged, of the values of the property on the prescribed date.  According to Mr Gossai's calculations, the Mitcham and Sylvester Units had been purchased for US$81.84 per sq ft, and the Nicholls Units for US$86.54 per sq ft.  The prices paid by these three purchasers, if followed, would result in a valuation of US$75.00 per sq ft for the condominium units and US$130,000.00 for all the lands in the three parcels.  The overall value of the subject property using this calculation, he submitted, would be US$9,368,390.00. 

[55]             Mr Gossai based this submission on the learning in the Windward Properties case[42] to the effect that the Board must take into account recent sales at the subject property and use that factor as the major one in the valuation of the subject property. 

[56]             Mr Gossai submitted that the Board could not rely on the purchase prices paid by the purchasers at a much earlier period when the project was a new and successful one and not yet considered a failing development.  That is entirely correct.

[57]             Mr Gossai further submitted that under the Act the claimants are entitled to interest at the rate of 4% per annum from the date of the acquisition, 18 January 2007, until payment is made, and the reasonable costs of the claimants in presenting their claims to the Board.  That is, in the view of the Board, entirely correct.

[58]             Martin Kenney & Co filed a number of written submissions[43], including substantive submissions and replies to the written submissions of other counsel.  Ms Robey of Martin Kenney & Co referred the Board to the Cyril Bufton case[44], which establishes that the sales comparison approach is an appropriate method of land valuation in these cases.  This case held that no compensation for loss of way of life, inconvenience, or contractual rights, could be awarded under the provisions of the Land Acquisition Act.  The Board accepts this as binding.

[59]             Ms Robey also referred to the Blakes Estate case from Montserrat[45], which established that the residual sales approach must be guided by comparable sales data.  Evidence of comparable sales should be taken into account, as should the potential of the land.  A Board must give adequate and cogent reasons for its decision.  Ms Robey submitted that the Board should distinguish the Windward Properties case, which established that recent sale of subject land is relevant, and likely to be the best evidence of value, provided it is sale in the open market by a willing seller, as in this matter before the Board the recent sales at the property had not been sales in the open market by a willing seller.  This is binding on the Board.

[60]             She also relied on the Barbadian case of  E Johnson & Co case[46], relating to beneficial interests.  This case established that the incidences of beneficial ownership and risk continue to be governed by the fundamental principle flowing from the specifically enforceable nature of the contract, ie, because the contract is specifically enforceable, the risk of compulsory acquisition lies with the purchaser.

[61]             Ms Robey also relied on a number of non-ECSC and non-Privy Council decisions, which she submitted are of persuasive authority in this jurisdiction.  These included:

(1) IRC v Clay[47], which dealt with the definitions of “willing seller” and “open market”.  Sale in the “open market” must include every possible purchaser, assuming proper steps are taken to market the property: per Swifen Eady LJ, “A value ascertained by reference to the amount obtainable in the open market shews an intention to include every possible purchaser. The market is to be the open market, as distinguished from an offer to a limited class only ... the market is not necessarily an auction sale.  The section means such amount as the land might be expected to realise if offered under conditions enabling every person desirous of purchasing to come in and make an offer, and if proper steps were taken to advertise the property and let all likely purchasers know that the land is in the market for sale ...”;

(2) The Shun Fung case[48], which found that the method of valuation is the value a willing seller in the open market might be expected to realise: “A claimant is entitled to be compensated fairly and fully for his loss ... Built into the concept of fair compensation is the corollary that a claimant is not entitled to receive more than fair compensation: a person is entitled to compensation for losses fairly attributable to the taking of his land, but not to any greater amount …”;

(3) Raja Vyricherla Narayana Gajapatiraju v Revenue Divisional Officer[49], which found that the value of land can be measured by the prices achieved in past sales of property of a similar quality and in a similar location.  Such comparable sales are what is meant by the “market value”: per Lord Romer, “In the case of land its value in general can also be measured by a consideration of the prices that have been obtained in the past for land of similar quality and in similar positions, and this is what must be meant in general by the 'market value'.”;

(4) The Trocette case[50], which approved the residual method of valuation where there were no comparable sales evidence available;

(5) Chiltern's case[51], which added a calculation of interest onto the award, and found that, in land acquisition cases, where the statute is designed to protect the dispossessed owner of the land, the presumption is in favour of interest being added.  In statutes which deprive citizens of property rights by compulsory acquisition, the provisions dealing with calculation of interest were intended by Parliament to protect the owner or occupier who was being dispossessed.  Therefore, they were to be construed in favour of the owner;

(6) The London, Chatham and Dover Railway case[52], which held that interest should be paid to a claimant not because of any damage done but because he has been kept out of his money;

(7) The Hilllingdon Estates case[53], which held that a purchaser becomes the owner of the land subject to his obligations to perform his part of the contract by paying the purchase monies;

(8) The Markem Corporation case[54], which held that a witness cannot be impeached without opportunity to defend his testimony in cross-examination.  Any evidence supplied by that witness ought to be accepted if it is not contested in cross-examination;

(9) Lloyds Bank PLC v Carrick[55], which found that unregistered beneficial interests, which arise only in the event that payment has been made in full, cannot bind a third party with registered legal interest in the property;

(10) Lysaght v Edwards[56], which held that once there is a valid contract for sale, the vendor becomes the trustee for the purchaser in equity and beneficial ownership passes to the purchaser.  The vendor holds the right to the money, a lien on the estate as security, and a right to retain possession until the purchase money is paid;

(11) Shaw v Foster[57], which held that upon signature of the contract of sale, the vendor becomes trustee of the estate and the purchaser a trustee of the purchase money;

(12) Pepper v Hart[58], which dealt with the purposive interpretation of statutes;

(13) The Kim Lim Som case[59], which dealt with frustration of contracts for sale of land in the event of compulsory acquisition.  The subject matter of what the parties had bargained for had been altered by the intervening acquisition.  The contract can be set aside, and the purchaser is entitled to a return of his deposit from the vendor;

(14) The Davis Contractors case[60], which found that frustration could not apply where there had merely been delay, albeit significantly longer than anticipated, that had resulted in an increase in costs.  The contract was still possible, although it became more onerous on one party due to the delaying events.

The Board accepted that these authorities were, as appropriate, either of binding or of persuasive authority.

[62]             The test for entitlement:  The powers of the Board to award compensation are limited by the provisions both of the Title by Registration Act and the Land Acquisition Act.  While “property” protected by The Constitution is capable of wide interpretation, the Board is not permitted to award compensation to every person whose property rights may have been infringed by a compulsory acquisition.  In a case involving compulsory acquisition of registered land, the Board is limited by the Land Acquisition Act to awarding compensation only to those persons who hold land as defined by the Title by Registration Act and following the limitations contained in that Act.

[63]             The words of the Title by Registration Act at section 5(2) are quite clear.  One of the declared purposes of the Torrens system of land registration was the replacement of all estates and interests in land previously recognised at common law by those interests only that were recognised by the Title by Registration Act.  Dealings with lands subject to the Act which are not in accordance with the provisions of the Act operate as contracts only.  They do not confer any right in respect of the subject lands, except the right of enforcing the contract as against the parties to the contract. 

[64]             Any compensation payable by Government in a compulsory acquisition situation must be assessed against the backdrop of common law principles of fairness.  As Thomas JA stated in the recent Court of Appeal St Kitts Loris James case[61], whatever the label given to acquisition of property by the State, “the payment of fair compensation is always the end result”.  The duty of this Board of Assessment is to determine what the fair compensation due to the admissible claimants on 18 January 2006 was, assuming an open market and a willing seller.  The Board must take any peculiar characteristics of the subject land into account.  Recent sales of the subject land, if any, will be considered as being the best evidence of value, provided they were sales in the open market by willing sellers.  Additionally, the Board must consider the legal character of registered land under the Title by Registration Act. 

[65]             National Bank:  It is the view of the Board that the interest of the St Kitts Nevis and Anguilla National Bank is at most a security interest registered against the titles to the properties in question.  The bank cannot recover from Government more than Government is required to pay to the various claimants to title to the mortgaged properties.  It will be a matter for the bank and the mortgagors to sort out between themselves, with the assistance of the court, if necessary, what other amounts are due from the mortgagors to the bank.  The amounts of compensation due to the bank are to be deducted from the amounts awarded to the property owners in question.  If there is any shortfall not covered by the amount of the award to the particular claimant, that is the risk that the bank took in accepting the security, and Government is not required to make up the shortfall.  In the view of the Board, there is no additional amount that is to be calculated to compensate the bank outside of what is due to be paid to the various claimants whose properties are mortgaged. 

[66]             Mitcham, Sylvester and Nicholls:  The Board was not able to accept the submissions made by Ms Mitcham on behalf of herself and her clients.  We consider that the submissions made by Martin Kenney & Co better reflect the law.  Inequitable as it seems to us, we are constrained by the law to find that Ms Mitcham, Ms Sylvester and Ms Nicholls have no interest in land that is required to be compensated by the Land Acquisition Act.  If they have any entitlement it is against the previous proprietors of the subject lands, or those who hold title from them.

[67]             Dunning, Hunter, Lesak:  Concerning the claims by Ms Herbert-Thompson's clients and others who had not paid in full or obtained a Certificate of Title, the Board finds that it cannot accept the submissions made by Ms Herbert-Thompson as entitling her part-paid purchasers to compensation from the Government.  We prefer the submissions of Martin Kenney & Co.  The Board is constrained by the law to hold that none of the claimants who did not hold a Certificate of Title under the Title by Registration Act is entitled to compensation from the Government.

[68]             The Authorised Officer:  Concerning Mr Gossai's submission that the Board should base its valuation of the condominium Units on the prices paid by Ms Mitcham and Ms Sylvester and Ms Nicholls, the Board takes the view that, as the Authorised Officer's valuer had not used this procedure at arriving at her valuation, nor had other counsel been previously alerted to this proposal so that they could respond to it, it would be unfair to the claimants to adopt the proposal without more.  This submission was raised by Mr Gossai for the first time in his final submissions to the Board.  None of the claimants’ counsel had been given an opportunity to lead evidence or to cross-examine witnesses on this suggested valuation previous to the submission being made.  The Authorised Officer in her Report had not relied on this theory in arriving at her valuation.  Nor is the Board able to rely entirely on the valuation made by the Authorised Officer's valuer, Mr Williams, for the reasons previously stated.

[69]             The Board accepts the submissions of Martin Kenney & Co in relation to the legal entitlement of various claimants under the Land Acquisition Act.  The Board prefers the approach to valuation taken by BCQS over all the other valuers.  However, the Board does not accept the conclusions come to by Ms Low in their entirety for the reasons previously given.

[70]             Rejected claimants:  On 1 December 2009, based on a failure to follow the directions given by the Board, the Board ruled that all claims rejected by the Authorised Officer, other than the Medeiros and McDonald claims were properly rejected.  The Board wished to hear submissions made on behalf of the Medeiros and McDonalds, who had complied with the directions.  The Board, in the event, was not persuaded that the Medeiros or the McDonalds had any right to be compensated by the Government of St Kitts and Nevis, for the reasons given above in relation to Ms Herbert-Thompson’s clients.

[71]             Applying the above principles, the Board reject the following claims as not being entitled to compensation under the provisions of the Land Acquisition Act:

Name of claimant	Particulars
Armstrong, Frank B	Unpaid bills
Buchanan, James	Unpaid bills
Cable & Wireless	Unpaid bills
Cote, David and Elizabeth	Deposit paid
Crossman, Jay and Danya	Timeshare interest purchased
Davidson, John	Unpaid bills
Dunning, Robert & Janet	Deposit paid
Fraites, Derrick V	Court judgment
Hobson, Michael	Court judgment
Hunter, Larry & Gail	Deposit paid
Island Purified Water	Unpaid bills
McDonald, Gary & Cathy	Deposit paid
Medeiros, Leonard & Mary	Deposit paid
Mitcham, Constance and Pearline Sylvester	Purchase price paid in full Executed but unregistered Memorandum of Transfer
Morton, Wycliffe & Associates	Unpaid bills
Nicholls, Fitzroy	Contract for chattel house
Nicholls, Rosalind	Purchase price paid in full Executed but unregistered Memorandum of Transfer
RBM Nursery & Landscaping	Unpaid bills
St Kitts Office Machines	Unpaid bills
Social Security Board	Unpaid contributions
Stapleton, Denise	Magistrate's Court judgment
TDC Ltd	Unpaid bills
Ward, Joseph	Loan
Water and Electricity	Unpaid bills
Wilcutts, Robert and Donna	Time share interest

Table 4. Claimants rejected by the Board

[72]             The property acquired by Government, and for which Government is obligated by the terms of the Land Acquisition Act to pay compensation, may be divided into the following categories:

Land interest	Owners
All condominium units in Blocks A, B and C comprising:  (a) the unsold units, (b) the 8 units of rejected claims, and (c) the 6 units of Mitcham, Sylvester and Nicholls.	Rowe and Secrist
41 sold units in Blocks A, B and C.	Condominium owners represented by various solicitors.
12.3285 acres of Y2 – 69, including Block D	The common areas by virtue of the Covenants, Conditions and Restrictions and the provisions of the Condominium Act. This land forms part of the entitlement of the condominium owners according to their percentage on completion of the first 3 buildings and is included in the award made to them.  The balance belongs to Rowe and Secrist.
Y2 - 382	Rowe and Secrist
Y2 0 383	Rowe and Secrist
Parcel of land measuring 5.000 acres	No claim made. No award made.
Parcel of land measuring 1.5027 acres	No claim made. No award made.

Table 5. Entitlements

The values of those entitlements, and the distribution of the resulting compensation award, are dealt with below.

[73]             What remains to be calculated are the amounts of compensation due to be paid to the various property owners at the subject lands.  The Board considered the evidence[62] of comparable sales in the Frigate Bay area provided primarily by Ms Low, and found the following:

Angelus	Sealofts	Leeward Cove	Island Paradise	St Christopher Club	Timothy Beach	Average
1,535 sq ft 2 bedrooms $136.81 sq ft	1,050 sq ft 2 bedrooms $128.17 sq ft	1,500 sq ft 2 bedrooms $164.74 sq ft	2 bedrooms $105.00 sq ft	1,600 sq ft 2 bedrooms $103.62 sq ft		US$127.67 per sq ft

Table 6: Comparative condominium sales in the year 2004

Angelus	Sealofts	Leeward Cove	Island Paradise	St Christopher Club	Timothy Beach	Average
968 sq ft 1 bedroom $116.40 sq ft			900 sq ft 1 bedroom $95.84 sq ft	900 sq ft 1 bedroom $112.07 sq ft	900 sq ft 1 bedroom $158.30 sq ft	US$120.60 per sq ft

Table 7: Comparative condominium sales in the year 2005

Angelus	Sealofts	Leeward Cove	Island Paradise	St Christopher Club	Timothy Beach	Average
	2 bedrooms $123.84 sq ft	1,900 sq ft 3 bedrooms $131.58 sq ft	2 bedrooms $150.00 sq ft			US$135.64 per sq ft

Table 8: Comparative condominium sales in the year 2005

Angelus	Sealofts	Leeward Cove	Island Paradise	St Christopher Club	Timothy Beach	Average
1,535 sq ft 2 bedrooms $136.81 sq ft	2 bedrooms $125.00 sq ft	2 bedrooms $177.54 sq ft	2 bedrooms $133.00 sq ft	1 bedroom $111.00 sq ft		US$131.97 per sq ft

Table 9: Comparative condominium sales in the year 2006

[74]             The average rate at which a condominium in the Frigate Bay area sold in the year 2004 was US$127.67 per sq ft.  In the year 2005 the average rate for a one-bedroom condominium unit was US$120.65 per sq ft, and for a two-bedroom unit was US$135.14. The average rate in the year 2006 for a two-bedroom unit was US131.97.  Sales varied between US$121.00 to US$137.00 per sq ft for the condominium units.  This figure would have included the value for the common areas.  The Board has assumed that had it not been for the legal issues, the condominium Units at The Angelus would have been selling at the prescribed time for about US$138.00 per sq ft. Similarly, had it not been for the legal and management issues, the land could have been sold at the prescribed time for valuation at US$8.00 per sq ft.  Due to the legal and management issues at The Angelus, these values dropped in all areas, the condominiums, the common areas, and the remainder of the land.  The Board has considered all the relevant factors and has assessed the median value per sq ft of the condominium Units at the prescribed time at US$107.00 per sq ft and the land at US$5.00 per sq ft.  The median value is applied to the Units on the middle floors.  The ground floor Units are assessed at 90% of the median value, or US$96.30 per sq ft.  The top floor Units are assessed at 110% of the median value, or US$117.70 per sq ft. 

[75]             The Land:  The common areas of the condominium project consist of land and improvements on Y2 - 69, less Y2 - 382 and Y2 - 383.  This parcel of land measures 12.3285 acres or 537,029.5 sq ft.  We do not deduct a notional one acre for the “footprint” of the 3 Blocks as done by Ms Low.  The “footprint” of the buildings is part of the common property of the condominium project.  At US$5.00 per sq ft, this gives a value of US$2,685,145.50 for the condominium land at Y2 – 69.

[76]             The two parcels of land cut off from Y2 – 69 and recorded at Book Y2 – 382 and Y2 – 383, and which are not part of the common property of the condominium project, are stated to measure 32,387 sq ft and 85,379 sq ft respectively, which at US$5.00 per sq ft gives assessed values of US$161,111.11 and US$427,777.78 respectively.  These amounts are not to be included in the value of the common property, but the entire sum of US$588,888.89 belongs to Rowe and Secrist in their representative capacities.

[77]             There remain two parcels of land acquired by Government.  SRO No 22 of 2006 applied to a parcel of land measuring 5.000 acres.  SRO No 23 of 2006 applied to another parcel of land measuring 1.5027 acres.  As previously explained, no claim was made in relation to them, and no award is made in relation to them.

[78]             The Improvements:  The improvements on the condominium land at Y2 – 69 include the common facilities.  These belong under the condominium regime partly to the developer and partly to condominium Unit owners.  We assess the value of these improvements separately as follows:

Description	US$
Laundry Building	48,000.00
Generator House	30,000.00
Parking and Walkways	230,400.00
Services	135,000.00
Landscaping	40,000.00
Block D (shell only)	825,960.00
Total	US$1,299,360.00

Table 10: Value of the common facilities.

Note that Block D consists of 20,649 sq ft, as did Blocks A, B and C.  We assess its value at US$40.00 per sq ft, to a total of US$825,960.00.  We include Block D as part of the Unit entitlement of the owners of Units in Blocks A, B and C, as we understand this to be the consequence of its having been constructed on the condominium lands.  The Central Facility is not separately listed as it is not on the condominium lands.  Neither is the pool separately listed.  It was not separately valued or measured and Mr Williams in cross-examination explained that it was included in the general calculations. 

[79]             Unit Values:  The registered plans show the Unit areas and the boundaries of Unit entitlements.  The individual Units vary in size.  The Williams and BCQS valuations include charts and list prices indicating that the developers of The Angelus had different asking prices for various unit types.  These show that the ground floor was priced approximately 10% less than the middle floor, while the upper floor was priced approximately 10% more than the middle floor.  The Board has assessed from the evidence above a median rate per sq ft of US$107.00.  This figure is then adjusted to reflect the different values of the three floor levels as follows:

Ground floor                  90%                  $96.30 per sq ft

Middle floor                   100%                $107.00 per sq ft

Top floor                       110%                $117.70 per sq ft

The Board assesses the compensation to be paid for Block C, which is partially incomplete, at 75% of the amounts to be paid for Blocks A and B.

[80]             Using the above sq ft rates, the amount of compensation due to be paid by Government for the condominium buildings, not including the share of the condominium land or the improvements, which are separately valued following the example given by the professional valuers, is as follows:

Block A – 17,956.37 sq ft x $107.00                     =          US$1,921,292.00

Block B – 17,956.37 sq ft x $107.00                   =          US$1,921,292.00

Block C – 17,956.37 sq ft x $107.00 x75%           =          US$1,440,969.00

Total                 US$5,293,553.00

[81]             The condominium buildings contain common areas such as halls, walls, roofs, floors, and stairways, for which Government is due to pay compensation.  These areas have not been taken into account in calculating the values of the individual units.  The Board assesses these common areas to be valued at the prescribed date at US$50.00 per sq ft.  The totals amount as follows:

Block A – 2,692.63 sq ft x $50.00                        =          US$134,631.50

Block B – 2,692.63 sq ft x $50.00                        =          US$134,631.50

Block C – 2,692.63 sq ft x $50.00 x 75%             =          US$100,973.60

Total                 US$370,236.60

[82]             The total amount of compensation due to be paid by Government is thus as follows:

Values of the various properties	Award in US$
1. Condominium land at Y2 - 69[63]	2,685,145.50
2. Land at Y2 – 382 and Y2 - 383[64]	588,888.89
3. The common facilities[65]	1,299,360.00
4. Condominium Units in Buildings A, B and C[66]	5,293,553.00
5. Common halls, walls, roofs, floors, and staircases in Buildings A, B and C.[67]	370,236.60
Total	10,237,183.39

Table 11: Totals of compensation due to be paid by Government.

[83]             It becomes necessary to extract from Table 11 the common properties and their values which are to be used to calculate each Unit entitlement.  These common properties will not include Item 2, which belongs to Rowe and Secrist alone.  Nor will it include Item 4, which is allocated directly to the owners of the condominium Units.  That leaves the following:

Values of the common properties	US$
1. Condominium land at Y2 - 69	2,685,145.50
3. The common facilities	1,299,360.00
5. Common halls, walls, roofs, floors, and staircases in Buildings A, B and C.	370,236.60
Total	4,354,742.10

Table 11: Common properties for calculation of unit entitlements.

[84]             The total amount of the entitlement of each Unit owner is thus the value of the condominium Unit depending on its sq ft area, and depending on which Block it is in, and on which floor, to which must be added the unit entitlement of the common land and common facilities and improvements described above. 

[85]             Conclusion:  That leaves to be done the purely mathematical calculation of the individual amounts of compensation due to be paid to various claimants whose claims have been approved by the Board according to the formula set out at the paragraph above.  The Unit entitlement of each of the claimants and the individual amounts of compensation due to be paid to each are as follows:

Names of Claimants	Unit numbers, share of common property, and value for compensation	Unit size, rate, and value for compensation	Total compensation
Bellis	Units 204A, 205A, 206A 2.71% US$118,013.51	1,441 sq ft @ $107.00 US$154,187.00	US$272,200.51
Benton	Units 210A, 211A and 212 A 2.85% US$124,110.14	1,527 sq ft @ $107.00 US$163,389.00	US$287,449.14
Cooper	Units 202C and 203C 1.91% US$83,175.57	1,020 sq ft @ $107.00 US$109,140.00	US$192,315.57
Drevs	Units 304B, 305B, and 306B 2.71% US$118,013.51	1,441 sq ft @ $117.70 US$169,605.70	US$287,619.21
Dunn	Units 301A, 302A and 303A 2.85% US$124,110.14	1,527 sq ft @ $117.70 US$179,727.90	US$303,838.04
Franconeri	Units 201A, 202A, and 112 A 2.85% US$124,110.14	1,527 sq ft @ $107.00 US$163,389.00	US$287,499.14
Groesbeck	Units 104A, 105A and 106A 2.71% US$118,013.51	1,441 sq ft @ $96.30 US$138,768.30	US$256,781.81
Harper	Units 110A, 111A and 112A 2.85% US$124,110.14	1,527 sq ft @ $96.30 US$147,050.10	US$271,160.24
Hayes	Units 305A and 306A 1.83% US$79,691.78	976 sq ft @ $117.70 US$114,875.20	US$194,566.98
Lesak	Unit 311B and 312B 1.91% US$83,175.57	1,020 sq ft @ $117.70 US$120,054.00	US$203,229.57
Mitchell	Unit 301B 0.93% US$40,499.10	507 sq ft @ $117.70 US$59,673.90	US$100,173.00
Mueller	Units 205C and 206C 1.83% US$79,691.78	976 sq ft @ $107.00 US$104,432.00	US$184,123.78
Robinson	Units 210B, 211B and 212B 2.85% US$124,110.14	1,527 sq ft @ $107.00 US$163,389.00	US$287,499.14
Rowe & Secrist	The balance of the property, subject to any National Bank mortgage		The balance
St Kitts-Nevis-Anguilla National Bank Ltd	Mortgages secured by various units.		As previously described
Sentz	Units 102A and 103A 1.91% US$83,175.57	1,020 sq ft @ $96.30 US$98,226.00	US$181,401.57
Warnell	Units 310A, 311A and 312A 2.85 US$124,110.14	1,527 sq ft @ $117.70 US$179,727.90	US$303,838.04
Wynne	Units 107A, 108A and 109A 2.71% US$118,013.51	1,441 sq ft @ $96.30 US$138,768.30	US$256,781.81

Table 12: Awards of compensation

[86]             All successful claimants are entitled to be paid 4% interest on their award from the date of acquisition, 18 January 2007.

[87]             Further, all successful claimants are entitled to be paid by Government their reasonable costs of presenting their claim.  The Board will hear applications for costs at a date, time and place to be notified in due course.

[88]             In conclusion, the Board wishes to thank the several counsel who presented the evidence and the law to the Board and who made their best efforts on behalf of their clients.  The diligence and research abilities of the attorneys of the firm of Martin Kenney & Co was particularly noted and appreciated.  Mr Arud Gossai of the Attorney-General’s Chambers is thanked especially for his superb efforts and those of his team in representing the Authorised Officer and in presenting her case before the Board, and in so efficiently having made the administrative arrangements necessary to permit the Board to do its work. 

Dated this 25th day of March 2010

………………………                               …………….                               …………………

Don Mitchell CBE QC                             Peter Jenkins                            Joseph Lancaster

---

[1]    Published in the Official Gazette of St Kitts and Nevis on 8 September 2006, see page 7 of Vol 1 of the Authorised Officers' Report.

[2]    See pages 1-6 of Vol 1 of the Authorised Officer's Report.

[3]    Cap 273 of the 1964 Edition of the Laws of St Kitts and Nevis, as subsequently amended by the Land Acquisition Ordinance (Amendment) Act, 1969.

[4]    SRO Nos 27-29 of 2006, see pages 7-13 of Vol 1 of the Report.

[5]    As a result of a consent order to that effect made by Belle J in the High Court in the case of Rowe & Secrist v A-G of St Christopher and Nevis, Consolidated Claims Nos SKBHCV 2008/208 and SKBHCV 2008/219.

[6]    See Appendix 1 for the transcript.

[7]    See Appendix 2 for the directions.

[8]    See Appendix 3 for the transcript.

[9]    See Appendix 4 for the transcript.

[10]  See Appendix 5 for the directions.

[11]  Official Gazette No 52 of 2009.

[12]  See Appendix 6 for the transcript.

[13]  See Appendix 7 for the transcript.

[14]  See Appendix 8 for the transcript.

[15]  See Appendix 9 for the transcript.

[16]  See Appendix 10 for the transcript.

[17]  Chapter 279 of the 1964 edition of the Laws of St Kitts and Nevis.

[18]  No 20 of 1976.

[19]  See the Declaration at Tab 7 of Bundle 6 of the Martin Kenney & Co bundles.

[20]  See sections 2 and 4 of the Condominium Act.

[21]  In Rowe & Secrist v Administrative Services Ltd et al (Suit No SKBHCV 2003/0222)

[22]  See Vol III of the Authorised Officer's Report, tab 2.

[23]  SI 1983 No 881.

[24]  A-G of St Kitts and Nevis v Lawrence (1983) 31 WIR 176.

[25]  At section 2.(2).

[26]  Section 4.

[27]  Supra

[28]  Found at the Report of the Authorised Officer, Vol I.

[29]  Found at the Report of the Authorised Officer, Vol III, tab 9.

[30]  See Vols I, II and III of the Authorised Officer's Report.

[31]  See the Addendum to Vol III, tab 9, of the Authorised Officer's Report.

[32]  Submissions in writing filed and served on 11 January 2010.

[33]  Written submissions of 1 December 2009 and and 5 February 2010.

[34]  Written submissions of 1 December 2009, 11 and 22 January 2010.

[35]  In their written submissions of 26 November 2009.

[36]  Attorney-General of St Christopher and Nevis v Lawrence (1983) 31 WIR 176, at 179.

[37]  Ibidem, at p.184.

[38]  Written submissions of 7 December 2009 and 11 January 2010.

[39]  In their written submissions of 12 January 2010.

[40]  Written submissions of 2 December 2009, and 11 and 28 January, and 6 February 2010.

[41]  In his written submissions of 12 January 2010.

[42]  Windward Properties Ltd v Government of Saint Vincent and the Grenadines [1996] 2 LRC 497 at 503, [1996] 1 WLR 279.

[43]  Written submissions of 14 September, 14 September No 2, 15 September, 26 November, and 4 December 2009; 11 January, 25 January, 12 February, and 17 February 2010.

[44]  A-G of Antigua & Barbuda v the Estate of Cyril Thomas Bufton (Civil Appeal No 22 of 2004, unreported)

[45]  Blakes Estate v Government of Montserrat (Civil Appeal Nos 2 and 3 of 2000, unreported)

[46]  E Johnson & Co (Barbados) Ltd v NSR Ltd [1997] AC 400, in the Privy Council.

[47]  IRC v Clay [1914] 3 KB 466.

[48]  Director of Buildings and Lands v Shun Fung Ironworks (1995) 19 EG 147, 1EGLR 19.

[49]  Raja Vyricherla Narayana Gajapatiraju v Revenue Divisional Officer [1939] AC 302.

[50]  Trocette v Greater London Council (1974) 27 P&CR 256.

[51]  Chiltern v Telford Development Corporation [1987] 1 WLR 872.

[52]  London, Chatham and Dover Railway v South Eastern Railway [1893] AC 429.

[53]  Hillingdon Estates v Stonefield (1952) 1 Ch 626.

[54]  Markem Corporation v Zipher Ltd [2005] RPC 31.

[55]  Lloyds Bank PLC v Carrick [1996] 4 All ER 630.

[56]  Lysaght v Edwards (1876) 2 ChD 399.

[57]  Shaw v Foster (1872) LR 5 HL 321.

[58]  Pepper v Hart [1993] 1 All ER 42.

[59]  Kim Lim Som v Sheriffa Taibah Bte Abdul Rahman [1994] 1 SLR 393.

[60]  Davis Contractors Ltd v Fareham UDC [1956] AC 696.

[61]  Loris James v The Attorney-General of St Christopher and Nevis (6 October 2008, unreported Court of Appeal decision) paragraph [29].

[62]  See Vol III of the Authorised Officer's Report to the Board.

[63] Paragraph [75] above.

[64] Paragraph [76] above.

[65] Paragraph [78] above.

[66] Paragraph [80] above.

[67] Paragraph [81] above.